State v. Gray ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JANUARY 1998 SESSION
March 24, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9702-CC-00058
Appellee, )
) LAWRENCE COUNTY
VS. )
) HON. JAMES L. WEATHERFORD,
WILLIAM HOWARD GRAY, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
SHARA A. FLACY JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
DANIEL J. RUNDE GEORGIA BLYTHE FELNER
Asst. Public Defender Counsel for the State
P. O. Box 1208 John Sevier Bldg.
Pulaski, TN 38478 425 Fifth Ave. North
(On Appeal) Nashville, TN 37243-0493
JAMES DANIEL FREEMON MIKE BOTTOMS
West Gaines St. District Attorney General
Lawrenceburg, TN 38464
(At the Hearing) JAMES G. WHITE
Asst. District Attorney General
P. O. Box 279
Lawrenceburg, TN 38464
OPINION FILED:____________________
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on June 8, 1993, on charges of incest and
statutory rape. He pled guilty to the incest charge, and the statutory rape charge was
dismissed. By agreement, the defendant received a sentence of five years in the
Department of Correction. This sentence was fully suspended and the defendant was
placed on immediate probation.
On August 19, 1996, a revocation warrant was issued and following a
hearing on September 16, 1996, the trial court revoked the defendant’s probation and
ordered him to serve the entire sentence. The defendant now appeals this revocation
contending that the trial judge abused his discretion in revoking probation; that the trial
judge erred in “engaging in extrajudicial proceedings or by and through engaging in
collateral considerations”; in revoking the defendant’s probation when he relied on the
advice of counsel; and that T.C.A. § 36-3-101, which prohibits marriage by a person to
his adopted sister, is unconstitutional. We do not agree with the defendant’s contentions
and, therefore, affirm the judgment below.
When a trial judge finds that a petitioner has violated the conditions of his
or her probation, the trial judge has the authority to revoke probation. See T.C.A. § 40-
35-310. In this case, it is clearly within the trial court’s discretion to revoke a defendant’s
probation and order the original sentence to be served. See State v. Duke, 902 S.W.2d
424, 427 (Tenn. Crim. App. 1995).
The violation warrant issued in this case alleged that the defendant failed
to obtain the consent of his probation officer before leaving the county or state of his
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residence, failed to make a full and truthful report as required, failed to obey the laws, and
failed to carry out the instructions of the probation officer. At the conclusion of the
hearing, the trial judge found that the defendant had left the state without permission, had
married the victim in violation of the probation officer’s instructions, had continued to have
contact with the victim after having been directed against such contact, and had failed to
comply with the TBI registry for one quarter.
There is little, if any, dispute concerning the evidence introduced at the
hearing. The defendant was convicted of incest and directed by the probation officer to
have no further contact with the victim. The defendant, relying upon the advice of his
attorney, went with the victim to the state of Mississippi and they were married.
Apparently, Mississippi law allowed the marriage of a brother to his adopted sister but the
same marriage is prohibited by the state of Tennessee. See T.C.A. § 36-3-101. The
proof also showed that the defendant’s attorney had talked with the probation officer
about the possibility of the defendant going to Mississippi to engage in marriage with the
victim. However, there was no indication that the probation officer consented or objected
to this plan. The proof further showed that the defendant had been directed to have no
contact with the victim and that this directive had been violated on a regular basis as the
defendant and the victim rode together to work each day. The defendant, at the time of
his reports, failed to reveal this relationship to the probation officer.
We find it unnecessary to address the defendant’s issue concerning the
constitutionality of the statute prohibiting marriages within a certain degree of relationship.
The defendant left the state of Tennessee without permission from his probation officer, 1
and he failed to truthfully report to his probation officer his continued association with the
1
We note that our law prohibits a probationer from leaving the jurisdiction of his probation officer
without the expres s perm ission of th e trial judge. See T.C.A. § 40-35-303(h).
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victim. The defendant’s subsequent marriage to the victim, even if valid in the state of
Mississippi, does not absolve the defendant of these violations of probation.
For the reasons stated above, we find that the trial judge did not abuse his
discretion in revoking the defendant’s probation. This finding makes it unnecessary to
answer the other issues raised in the defendant’s brief. We affirm the judgment of the
court below.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
JERRY L. SMITH, Judge
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